Danish Supreme Court Sets High Bar For Evidence In File Sharing Cases

from the good-for-it dept

One of the complaints that many have made concerning various file sharing lawsuits is how rightsholders too often rely on highly questionable or weak evidence. Over in Denmark, where efforts against file sharing by record labels and the IFPI have been aggressive, the Supreme Court has now deemed weak evidence insufficient for such cases. The case involved a guy who was accused of sharing 13,000 tracks. The court eventually decided he should pay $1,900 -- significantly less than what the record labels requested. The main reason for the lower dollar amount was the limited quality of the evidence by the "anti-piracy" group Antipiratgruppen:

APG used techniques which scraped the index of the files said to be being made available by the defendant and then linked them back to his IP address, a method which has been acceptable in the past. But while the Court accepted that some sharing had occurred due to the defendant’s confession, it wasn’t satisfied that the index was an accurate representation of the files physically present on the defendant’s computer.

Nice to see some courts recognizing that just having an IP address is not enough evidence on its own.

Filed Under: denmark, evidence, file sharing, supreme court

Supreme Court Agrees To Hear Important Copyright Case: Will Review First Amendment vs. Copyright Issue

from the fingers-crossed-that-they-get-this-right dept

We've been covering a very important copyright case -- Golan vs. Holder -- which involves a key question about copyright law. While the case may seem narrowly focused, it has much larger implications. As we've discussed, it's the third case in a trio of cases that involved Larry Lessig, concerning the ability of the US to retroactively change copyright law. The first two, Eldred and Kahle, both ended up in losses, but they did get the court to establish some boundaries for when and how the US could retroactively change copyright law. As a very quick review, Eldred argued that the ongoing extension of copyright violated the "limited" part of the copyright clause in the Constitution. The Supreme Court eventually said that this was Congress's call, and noted that it wouldn't review copyright extension on First Amendment grounds unless the change in the law went beyond the "traditional contours of copyright protection." Of course, many of us believe that an automatic copyright that lasts multiple lifetimes goes way beyond the traditional contours of copyright protection that kicked off with very limited protections, requiring registration and only lasting for a short period of time. But what do we know?

The second case, challenging the registration/automatic question, pointed out that under the Eldred ruling, the 1976 Copyright Act should be reviewed for First Amendment issues, since it certainly changed the traditional contours by switching copyright from "opt-in" to "opt-out." Actually, it didn't even switch it to opt-out, as there's really no way to officially opt-out of copyright coverage. That seems like a massive change to the traditional contours of copyright law. However, the appeals court got confused and simply assumed that what was being argued was the same issues in Eldred.

The third case is this case, the Golan case -- which noted that due to a treaty agreement, the US took some foreign books that had been in the public domain, and retroactively put them under copyright protection, putting some sellers of those books at risk for infringement. Two years ago, we were a bit surprised to find a court agreed, and said that this part of the Copyright Act was unconstitutional. Basically, the court suggested that Congress could have written the law in such a way that left those works in the public domain. Last summer, the 10th Circuit appeals court reversed the lower court, and basically said it was okay to take these works out of the public domain, and that there was no First Amendment issue in doing so, because copyright law "addresses a substantial or important governmental interest." For a variety of reasons, I found this reasoning to be quite problematic.

Golan appealed, and it was just announced that the Supreme Court will actually take the case and will review the First Amendment issue (along with the Progress Clause issue). While I wouldn't be surprised if the Court made a ruling that flies in the face of reason, as it did with Eldred, perhaps we can be hopeful that some on the court will finally recognize how the massive expansion of copyright over the last century really does raise serious First Amendment issues. This is an important case to follow, even if it seems likely that the Supreme Court will make another bad ruling. And, even though it may be a narrow issue, getting the Supreme Court to actually look at some of the issues when the First Amendment comes into conflict with copyright is still important.

Filed Under: copyright, golan, public domain, supreme court

Supreme Court Says AT&T Has No Right To 'Personal Privacy'

from the don't-take-it-personally dept

Last year, we wrote about an important case in which AT&T bizarrely claimed that it had personal privacy rights over information the FCC collected in an investigation concerning AT&T overbilling the government. An organization had made a Freedom of Information Act (FOIA) request on the info, but AT&T protested that, as a corporation, it had a personal right to privacy. As we noted, that seemed like a pretty ridiculous claim, but the appeals court accepted it. We were therefore happy to see the Supreme Court pick up the case last fall, and now it has unanimously ruled against AT&T (8 - 0, with Kagan not taking part, since she filed the original brief for the federal government in support of the FCC). Considering the complaints some have made about the Supreme Court taking the idea of "corporate personhood" too far, I think plenty of people (who don't work for AT&T) will agree that this ruling makes plenty of sense. A corporation has a right to keep certain information secret and confidential, but the idea it has a "right to privacy" makes no sense.

The actual ruling (embedded below) is quite interesting in noting, while corporations may be "persons," that does not automatically afford them "personal" rights.

Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun "crab" refers variously to a crustacean and a type of apple, while the related adjective "crabbed" can refer to handwriting that is "difficult to read," Webster's Third New International Dictionary 527 (2002); "corny" can mean "using familiar and stereotyped formulas believed to appeal to the unsophisticated," id., at 509, which has little to do with "corn," id., at 507 ("the seeds of any of the cereal grasses used for food"); and while "crank" is "a part of anaxis bent at right angles," "cranky" can mean "given to fretful fussiness," id., at 530.

Even in cases such as these there may well be a link between the noun and the adjective. "Cranky" describes a person with a "wayward" or "capricious" temper, see 3 Oxford English Dictionary 1117 (2d ed. 1989) (OED), which might bear some relation to the distorted or crooked angular shape from which a "crank" takes its name. That is not the point. What is significant is that, in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. The FCC's argument that "personal" does not, in fact, derive from the English word "person," but instead developed along its own etymological path, Reply Brief for Petitioners 6, simply highlights the shortcomings of AT&T's proposed rule.

"Person" is a defined term in the statute; "personal" is not. When a statute does not define a term, we typically "give the phrase its ordinary meaning." Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 4). "Personal" ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word "personal" to describe them.

Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, "I have something personal to tell you," we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, "that's personal." A company spokesman, when asked for information about the company, would not. In fact, we often use the word "personal" to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company's view.

Justice Roberts, who wrote the decision, then goes on to pick apart each argument made by AT&T as to why it should be allowed "personal" privacy, leading to the rather obvious punchline that you have to think the Justices had in mind to use from the very beginning:

We reject the argument that because "person" is defined for purposes of FOIA to include a corporation, the phrase"personal privacy" in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

Filed Under: corporations, fcc, foia, personal privacy, personhood, privacy, supreme court
Companies: at&t, fcc

Supreme Court Lets Price Fixing Claims Against Major Labels Over Digital Music Move Forward

from the fix-that dept

For many years, we wondered why the major record labels weren't brought up on price fixing charges concerning their various digital music deals. It involved all of the major labels working out deals where the price of music was exactly the same across the board and where it was the labels themselves who got to determine the end-user price rather than the retailer, which seemed like clear cases of price fixing. It used to be that manufacturers were not allowed to require a retailer to price in a certain way, as that would be prima facie evidence of price fixing but more recently rulings have dialed back that rule. Still, it seemed like some of the other aspects of digital music pricing still represented clear price fixing. It took long enough but finally some people sued. While a lower court had tossed out the lawsuit, last year we noted that the 2nd Circuit appeals court had reinstated it. The labels appealed to the Supreme Court, who has now allowed the case to move forward by rejecting an appeal from the labels. At this point, I wonder if the labels won't try to settle the lawsuit in an attempt to avoid a full trial. The chances that the labels might lose seems decently high and the costs to them could be quite high.

Filed Under: collusion, price fixing, record labels, supreme court

Appeals Court Says (Again) That Diagnostic Tests Are Patentable

from the supreme-court-please? dept

Last year, we wrote how a bunch of doctors were quite worried about an ongoing patent lawsuit, Prometheus Laboratories v. Mayo Collaborative Services. It involved a company, Prometheus, that claimed it could patent basic medial diagnostics, and basically said no one (such as the Mayo Clinic) could diagnose patients in the same way without paying Prometheus. The whole concept was abhorrent to many doctors. Yet, as we worried, last year the appeals court (CAFC), as it has done so often, sided with the patent holders. This summer, when the Supreme Court decided Bilski, one thing it asked CAFC to do was reconsider the Prometheus case. It's now done so, and nothing much has changed. Once again, CAFC has said that basic diagnostic tests may be patentable. Many also think (probably correctly) that this is a good indication that CAFC will also reverse a lower court ruling in the Myriad Genetics case, concerning whether or not genes are patentable. If diagnostic tests are patentable, why not genes? Of course, all this really means is that sooner or later the Supreme Court is going to have to weigh in again, and hopefully it won't punt the issue like it did in Bilski.

Filed Under: cafc, diagnostic tests, genes, patents, supreme court
Companies: mayo clinic, myriad genetics, prometheus labs

Supreme Court Ruling: You May Not Be Able To Legally Sell A Product First Made Outside The US

from the this-is-bad dept

Earlier this year, we covered a rather important copyright case in the Supreme Court, between watchmaker Omega and retailing giant Costco. The crux of the issue was that Costco bought a bunch of Omega watches that were not meant for sale in the US, imported them, and started selling them in the US for less than Omega was selling other watches here. Your basic principles of "you bought it, you can resell it" seemed to apply, but Omega had a nasty copyright trick up it's sleeve. It had put a little 0.5 cm "globe" design on the underside of the watches -- where no one would see it, and then claimed copyright on the design. Thus, they claimed that Costco's attempt to resell the watches was copyright infringement. Of course, US copyright law has a right of first sale (the same "you bought it, you can resell it" concept), but Omega's lawyers craftily sought out a loophole in US copyright law.

The Copyright Act's section that deals with first sale rights (section 109(a) for those playing along with the home game) notes that it only applies to copies "lawfully made under this title." Omega's lawyers argued that the design on the watches does not count because the watchers were made outside of the US, and thus not covered by US copyright law and thus the design was not lawfully made under US copyright law.

The Ninth Circuit appeals court -- which certainly has a history of wacky rulings -- agreed with Omega's interpretation of the law and the case was appealed to the Supreme Court. The court deadlocked on the issue today, coming to a 4-4 tie (with Justice Kagan not taking part, since she had filed an amicus brief in the case as Solicitor General), meaning that the 9th Circuit ruling stands and copyrighted products first made outside the US may no longer have a right of first sale.

In other words, be careful if you buy a book that was first published outside the US. Technically, you may no longer have a legal right to sell it -- or even to lend it to to others, which is why librarians were reasonably worried about this decision.

If there's any sort of silver lining to all of this, the fact that the Justices deadlocked, rather than coming to a full decision means that it's not a precedential ruling and a different case could allow them to decide differently later on. Though, if you were wondering, when Kagan filed the amicus brief as Solicitor General... she sided with Omega, and said the Supreme Court should not take the case, since the 9th Circuit's ruling was just fine.

Filed Under: copyright, first sale, supreme court
Companies: costco, omega

Supreme Court Will Review The Standard For Patent Infringement: Could Raise The Bar

from the preponderance-of-the-evidence dept

We've been following the Microsoft/i4i patent case for a while. If you don't remember, i4i came up with a basic system for editing XML documents and patented it. Microsoft included similar technology in Word and got sued. A court, stunningly, decided that this rarely used feature was somehow worth $98, which seemed pretty extreme for a minor (and relatively easy to implement) feature. But, such is life in a world with software patents. The CAFC (appeals court) upheld the ruling, and Microsoft appealed to the Supreme Court. At the time, I didn't think there was much of a chance of review, as I didn't realize there was a bigger legal point that Microsoft was attacking here. However, it later came out that the focus of the appeal was the standard used in patent cases. As the EFF summarized in discussing the case:

In court, parties have to prove their case by some "standard of proof." In almost all civil cases, the standard is "preponderance of the evidence" -- meaning it is more likely than not that the facts are true. When the question is invalidating a patent, however, the U.S. Court of Appeals for the Federal Circuit decided that a defendant trying to prove a patent invalid must do so by a higher standard than normal civil cases, that of "clear and convincing" evidence. "Clear and convincing" means that the facts are "highly probable," which is a much more difficult standard to meet when trying to invalidate a patent than just a preponderance.

That question apparently was intriguing enough to at least four Supreme Court Justices, as this is one case they have agreed to hear. For the past decade or so, the Supreme Court has been smacking CAFC around on a variety of patent issues, and if it was comfortable with how CAFC ruled here, it could have declined to hear the case. So just taking the case indicates concern among at least a core group of the Justices. This could mean that the standard for invalidating a patent could be lowered -- which would be a pretty big win for those of us who worry about how often bad or obvious patents are allowed to remain standing in various innovation-hindering lawsuits.

Filed Under: patents, standard, supreme court
Companies: i4i, microsoft

Supreme Court Also Won't Hear Tiffany's Claim Against eBay

from the dumping-secondary-liability dept

We already noted that the Supreme Court has refused to hear Whitney Harper's innocent infringer case, but in a bit of better news, the Supreme Court has also decided not to hear Tiffany's appeal against eBay, concerning whether or not eBay was guilty of secondary trademark infringement in allowing counterfeit Tiffany goods to be sold on the site. The appeals court pointed out this made no sense, so it's good to hear that the Supreme Court won't upset that ruling -- especially since that ruling has been a key part of the Viacom/YouTube case, in showing that secondary liability shouldn't automatically be applied to third parties, even in the potential absence of legislative safe harbors. One of the concerns with various safe harbors that protect third parties from actions of their users is the implication that without those safe harbors, third parties are automatically liable. Yet, as the Tiffany case showed, some common sense should be applied. Third parties shouldn't be liable for actions of their users unless there's significant involvement by the third party in the infringement.

Filed Under: secondary liability, supreme court, trademark
Companies: ebay, supreme court, tiffany

Supreme Court Won't Hear Innocent Infringer Case, Though Alito Thinks It Should

from the pay-attention dept

This is hardly a surprise. Since Whitney Harper lost the appeal in her fight against the RIAA, claiming that statutory rates should be lowered to $200 (from a minimum of $750) as she was an "innocent infringer" (something which the law allows), we noted that it was unlikely the Supreme Court would hear the case. Even after the Supreme Court asked the RIAA for more info, we still noted that it was a long shot. So, it shouldn't come as any surprise that the Supreme Court has refused to hear the case.

If you don't recall, the issue is whether or not Harper qualifies as an innocent infringer under the law. Her argument was that she believed file sharing was similar to radio and never saw any indication that she was infringing on anyone's copyright. The appeals court, oddly, ruled that the copyright notice on CDs was enough -- even though Harper never saw any of the CDs in question. This seemed like an odd ruling, though perhaps not a big enough issue for the Supreme Court to care about.

What's interesting is that at least one Justice, Samuel Alito, actually did want to hear the case and appears to agree that Harper had a really strong case:

In explaining his position, Alito appeared to agree with Harper saying there is a "strong argument" that the current law does not apply to downloaded digital music files. "[A] person who downloads a digital music file generally does not see any material object bearing a copyright notice, and accordingly there is force to the argument that [current law] does not apply."

I hadn't heard Alito opine on anything related to cppyright law before, so this is interesting. There hasn't been a big copyright case to hit the Supreme Court in a while, and there are a lot of new Justices on the court since cases like Eldred and Grokster. If there are some Justices who actually recognize that the law doesn't seem to weigh what the industry keeps insisting it says, things could get quite interesting...

Filed Under: copyright, innocent infringer, samuel alito, supreme court, whitney harper
Companies: riaa

Will The Supreme Court Review Patent Invalidation Standard In Microsoft vs. i4i Case?

from the perhaps dept

At the end of August, when Microsoft officially appealed its loss in a patent infringement lawsuit filed by a company named i4i over features for editing XML in a document (patent 5,787,449), I doubted that the Supreme Court would hear the case, given the lack of any larger significance. However, I may have underestimated how much the tech and legal community would rally behind a key point in the appeal: the legal standard for invalidating a patent -- something the Supreme Court hinted it had trouble with way back in the famous KSR case.

As the EFF explains in its blog post about its own brief:

In court, parties have to prove their case by some "standard of proof." In almost all civil cases, the standard is "preponderance of the evidence" -- meaning it is more likely than not that the facts are true. When the question is invalidating a patent, however, the U.S. Court of Appeals for the Federal Circuit decided that a defendant trying to prove a patent invalid must do so by a higher standard than normal civil cases, that of "clear and convincing" evidence. "Clear and convincing" means that the facts are "highly probable," which is a much more difficult standard to meet when trying to invalidate a patent than just a preponderance.

Considering the massive economic harm that bad patents can do, you would think that it would absolutely make sense for there to be a lower standard to invalidate bad patents. And, certainly, it seems that lots of folks agree. The link to Law.com above has links to most of the briefs filed in support of changing the standard -- including summaries of what's in each brief. We already mentioned EFF (whose filing was done with Public Knowledge, CCIA and the Apache Software Foundation), but other briefs came from CTIA, Google, Yahoo, Intel, Apple, Verizon, Facebook, Wal-Mart, HP, Dell, HTC, Intuit, Toyota, Netflix, Newegg, SAP, GM, Teva Pharmaceuticals, Cisco and a few others as well. In other words, there are a lot of folks interested in this issue, and reasonably see this as an important way to stop the harm caused by bad patents.

The key issue, of course, is that patent examiners really don't have that much time to spend on patents, so their ability to really review the state of the art and the prior art is limited. That's not putting down the patent examiners; it's just the fact of the matter. An average examiner spends just a few days on a patent, which is hardly enough time to recognize what the real state of the art might be. So it seems to make a lot of sense to have a low bar to proving a patent invalid at a later date -- especially if more evidence can be shown on the state of the art at the time.

Along those lines, in a filing by a bunch of law, economics and business professors it's pointed out that, not only do patent examiners not have nearly enough time to understand the state of the art, but that a patent examination process happens with no real "opposition," who has the real incentive to point out the state of the art or the prior art. That's what happens during a trial, and that's a more likely situation to be able to fairly evaluate patent quality. Thus, the courts shouldn't put too much weight on the examiner's determination, as it's hardly the best review.

Another key point made in the filings, is the fact that, back before CAFC (the appeals court that handles most patent appeals) was created and started using this standard, disputed patents were much more likely to be rejected as invalid. However, since this change has occurred, a much higher percentage are held valid. The quality didn't change -- those are still bad patents. It's just that the standard for invalidating bad patents changed. It's hard to see who would argue that leaving bad patents in place is a good thing... unless your business relies on bad patents.

I'm still not convinced the Supreme Court is really interested in taking this on, but given the amount of firepower asking it to fix this issue, perhaps the Court will do the right thing.

Filed Under: cafc, clear and convincing, invalidation, patents, preponderance of the evidence, standards, supreme court
Companies: i4i, microsoft